Heim v. Butin

Citations

• 5 Cal. Unrep. 19
• 40 P. 39
• 1895 Cal. LEXIS 1203

Syllabus

<p>Mortgage Foreclosure—Agreement to Purchase—Deficiency Judgment.—Plaintiffs, having executed a note and mortgage to defendant, conveyed the mortgaged property to another, who assumed the payment of said note and mortgage, but he having defaulted thereon, defendant agreed with plaintiffs to purchase the land at the foreclosure sale for the full amount of his claim, and not to take a personal judgment against plaintiffs, and the latter, relying on such promise, allowed default to be entered, and refrained from attending the sale. Held, that there was a sufficient consideration for such agreement. Such agreement was not void as altering the terms of the note and mortgage. Nor was it void as an agreement to prevent bidding at the sale.1</p> <p>Mortgage Foreclosure—Deficiency Judgment.—The Complaint, in a Suit to Enjoin the Enforcement of a deficiency judgment, obtained against plaintiffs in such foreclosure suit, alleged that plaintiffs, relying on defendant’s promise, failed to appear in the suit, or to be present at the sale, or make any bid thereat, though they were able to purchase the property and protect themselves. Held, that the complaint showed that plaintiffs were damaged by their reliance on defendant’s promise, they having a right to demand that the deficiency judgment be entered also against the owners of the property.</p>